"A Considerable Surgical Operation": Article III, Equity, and Judge-Made Law in the Federal Courts

Article excerpt


This Article examines the history of judge-made law in the federal courts through the lens of the early-nineteenth-century federal courts' equity powers. In a series of equity cases, and in the Federal Equity Rules promulgated by the Court in 1822 and 1842, the Supreme Court vehemently insisted that lower federal courts employ a uniform corpus of nonstate equity principles with respect to procedure, remedies, and--in certain instances--primary rights and liabilities. Careful attention to the historical sources suggests that the uniform equity doctrine was not simply the product of an overreaching, consolidationist Supreme Court, but is best understood in the context of important and surprisingly underappreciated early-nineteenth-century debates concerning judicial reform. During this period, both Congress and the Court were preoccupied with the disuniformity in the administration of the federal judicial system, especially in the farther reaches of the republic. When reform was not forthcoming through legislation, the Supreme Court achieved a modicum of uniformity in the federal courts through the application of a single body of equity principles drawn from federal and English sources. But the Court did not act unilaterally. Congress's repeated acquiescence to, and extension of, the Court's uniform equity doctrine reveals a complex, interbranch dynamic at work.

Retelling the story of nonstate, judge-made law in the federal courts through the lens of equity is not intended to demonstrate that such a formulation of federal judicial power was (or is) correct. Rather, by recuperating the history of federal equity power, this Article illuminates the significant metamorphosis of the meaning of Article III's grant of judicial power. This change has been elided in modern accounts of federal judge-made law in an effort to bolster the legitimacy of a modern vision of federal judicial power.


  I. Federal Judge-Made Law in Law and Equity
     A. Sources of Law in Cases Brought in Law
     B. Sources of Law in Cases Brought in Equity
        1. The Origins of Federal Equity Power
        2. Uniformity in Federal Equity
 II. Foreign Law in the Federal Courts
     A. New States, Orphan States, and Quasi-Circuit Courts
     B. Kentucky: Panic, Process, and Alien Law
        1. Senator Rowan Versus Senator Webster, and the
           Process Act of 1828
        2. Judicial Reform and Federal Equity in Kentucky
     C. Louisiana: "Foreign Law" in the Federal Courts
        1. Equity in Louisiana Federal Courts
        2. Institutional Stalemate
        3. Federal Equity and Institutional Uniformity in
     D. Instituting the Federal Courts and Courting the Nation.
III. "A Considerable Surgical Operation" and the Erasure of
     Federal Equity


The history of judge-made law in federal civil cases is commonly examined through the lens of Section 34 of the Judiciary Act of 1789 (1) (the original Rules of Decision Act) and the Supreme Court's famous interpretation of that Act in Swift v. Tyson. (2) This Article examines the history of judge-made law in the federal courts, but shifts attention away from Section 34, focusing instead on early-nineteenth-century federal courts' equity powers) This alternative doctrinal perspective allows a flesh look at a long-standing debate concerning the historical scope of federal judges' power to apply nonstate, judge-made law, and enables reevaluation of some of the historiographic and doctrinal claims that are often at stake in that debate.' The history of federal equity told in this Article challenges the notion that one can make broad generalizations about early-nineteenth-century views regarding the use of nonstate, judge-made law in federal court and instead forces one to recognize that modern conceptions of federal judicial power are just that: modern.

Intense focus on the history of Section 34 can in part be traced to the years leading up to Erie Railroad Co. …